Updated: Mar 24, 2022
Privileged Communications -
Imagine for a moment that you have been keeping a diary where you record your innermost thoughts, dreams, fears, sins, and misdeeds. You are now involved in a divorce or custody case. Your spouse has managed to put his or her hands on that diary and is going to use it against you. This is beyond frightening, is it not?
Over the course of many years all of us have come to the belief that certain conversations or disclosures are confidential in nature and cannot be exposed. For example, what we tell our attorney is protected by the attorney-client privilege. Similarly, what we tell our doctor, therapist or mental health professional is also privileged. Finally, the secrets we share with our spouses can, under certain circumstances, also be deemed confidential.
The reality is that all of these privileges have exceptions and limitations which can be exploited by an angry and ruthless spouse in the context of a divorce case or a custody matter.
Let’s start with the privileged communications between a mental health professional and a patient. Almost all of these privileges are found within the statutory laws of the individual states of this country. Thus, it is important to examine these individual statutory privileges and to consult with attorneys in your state.
For example, in New York, the mental health privilege generally protects disclosures and conversations between patients and a specific class of professionals - psychiatrists, psychologists and licensed social workers. At this time it is unclear whether “divorce coaches” or “co-parenting coaches” are included within this umbrella, unless they otherwise qualify under one of the other mental health designations.
However, even assuming the existence of a qualified professional relationship (i.e. “therapist”- “patient”), this privilege is deemed waived whenever the patient “puts into controversy” their mental or physical health – raises this issue in the context of a court case.
The clearest example of this implied waiver is a case involving custody or visitation. In such cases the parents in the battle are deemed to have put their mental and physical health in controversy. Thus, the treatment notes and records of their doctors or designated mental health professionals, as well as any conversations between them, are open for inspection and disclosure.
In my divorce practice, whenever I met with a client involved in a potential custody battle and found out that they were in therapy I had to advise them that they needed to be careful what they told their treating doctor or therapist since their conversations were not necessarily confidential. Obviously, such an admonition runs counter to the essential purpose of therapy. Unfortunately, this is an area where the law and medicine are at odds with each other.
Alternatively, one of the most commonly recognized and well established privileges is the attorney-client privilege. Yet, because of certain limitations on the privilege, there are times that the client has to be careful what they tell their divorce attorney.
In New York, divorce attorneys are required to certify as accurate the statements of their clients which are filed with the court - including financial statements of net worth and income. Thus, if a client reveals to his or her divorce lawyer that the previously filed tax returns do not accurately reflect the income of the parties or that there are hidden assets which the other spouse is unaware of (think Cayman Islands), the attorney cannot certify the client’s financial statements, unless the total income and all assets are revealed.
Said differently, attorneys may not reveal the confidential information imparted by the client but the lack of attorney certification on the client’s filing is a huge red flag to the judge that the statement is not accurate.
Also problematic for the attorney and the client are instances when the client has conducted illegal surveillance on his or her spouse and/or provided documents, tape recordings or other improperly gathered evidence to their attorney Here, the attorney is ethically forbidden from using such illegal evidence or even certifying that the client is innocent of such criminal activity.
Finally, we turn to the so-called husband-wife privilege. The privilege applies only to a confidential communications (oral, written or recorded) between spouses, which is induced by the marital relationship and made during the marriage. Generally speaking it is limited to those communications which a person makes to his or her spouse which would not have been made but for the marital relationship.
For example, when the husband discloses to his wife that he has previously filed false tax returns under-reporting their income or has stolen money from his employer in order to explain how they have managed to pay their bills, such disclosures are protected.
However, conversations between spouses about committing a future crime together are not privileged. Moreover, threats of violence or episodes of domestic abuse are not privileged since they are not made in reliance of the marital relationship and indeed are contrary to the relationship. Given the number of exceptions and nuances to the rule, advice from an attorney who has full knowledge of the relevant facts is the only prudent way to assess this issue.
In summary, parties embarking upon a divorce or custody case need to carefully navigate the area of “confidential communications” when dealing with doctors, mental health professionals, attorneys and even their spouses. Understanding the limits of confidentiality or privilege will at least provide protection against unintended disclosures.